The opinion of the court was delivered by: BARD
This is an action under section 205(e) of the Emergency Price Control Act of 1942
to recover treble damages, together with reasonable attorney's fees and costs, for failure to refund rent received in excess of the maximum rent fixed in accordance with the provisions of that Act.
On the basis of the pleadings and the testimony, I make the following special
1. Defendants, William Garthly and Elizabeth V. Weintraub, are, and at all material times have been, the owners and lessors of the apartment building at 315 Harrison Avenue, Elkins Park, Montgomery County, Pennsylvania, which is located within the Philadelphia Defense Rental Area.
2. On March 1, 1942, defendants rented Apartment 'B' of the aforesaid premises to plaintiffs, Adolph Haber and Lucille Haber, under a yearly lease which provided for $ 85 monthly rental.
4. On August 30, 1945, the Office of Price Administration Rent Director for the Philadelphia Defense Rental Area issued an order effective October 17, 1944, reducing the rental for Apartment 'B' from $ 85 per month to $ 75 per month on the ground that essential repairs, janitor service, and garbage disposal had not been provided by defendants. This order further stated:
'All rent received by you since effective date of this order, in excess of the maximum legal rent established thereby, namely $ 75.00 per month is subject to refund to the tenant. Upon your failure to make such refund within thirty days from the date hereof, the excess payments received and withheld will be considered an overcharge within the meaning of Section 205(e) of the Emergency Price Control Act of 1942, as amended, subjecting you to a treble damage action in accordance with that section without further notice.'
5. Subsequent to receipt of the Area Rent Director's order of August 30, 1945, defendants protested to the Rent Director that the order had been issued without prior notice to defendants, and that defendants had therefore been denied an opportunity to present argument or evidence in their behalf. Accordingly, the Area Rent Director arranged a hearing on the matter for December 13, 1945, at which hearing defendants were permitted to present all evidence and other matters pertinent to the controversy which had not been submitted previously.
6. On February 7, 1946, the Area Rent Director informed defendants by letter that as a result of the conference of December 13, 1945, it had been decided 'that the order issued August 30, 1945 and effective October 17, 1944, was correct and that it must remain in effect until changed by order of the Area Rent Director.' The letter of February 7, 1946, reiterated that 'All rent since the effective date of this order in excess of $ 75.00 per month is subject to refund to the tenant.'
7. From March 1, 1942, through September 30, 1945, defendants demanded of and received from plaintiffs the sum of $ 85 per month as rental for Apartment 'B.' Up until the date of the trial, April 29, 1946, defendants had not tendered to plaintiffs any refund of the $ 10 per month overcharge for the period October 17, 1944, through September 30, 1945.
Defendants challenge the validity of the Office of Price Administration order of August 30, 1945, affirmed by letter of February 7, 1946, wherein the Area Rent Director ordered defendants to reduce plaintiffs' rental to $ 75 per month, and to refund to plaintiffs all rent in excess of $ 75 per month received since October 17, 1944. However, this court is not a proper forum in which to challenge the validity or constitutionality of the order in question, and the invalidity or unconstitutionality of the order may not be asserted as a defense to the present action. Section 204(d), Emergency Price Control Act of 1942, supra; Lockerty v. Phillips, 1943, 319 U.S. 182, 63 S. Ct. 1019, 87 L. Ed. 1339; Midwood Gardens, Inc. v. Bowles, D.C.E.D.N.Y., 1944, 57 F.Supp. 110; Bowles v. Indianapolis Glove Co., 7 Cir. 1945, 150 F.2d 597; Bowles v. Sec-Con Home Builders, Inc., D.C.Kan., 1945, 62 F.Supp. 654.